The National Labor Relations Board’s latest decision on Lion Elastomers LLC could have significant implications for employers managing employee misconduct that occurs during protected union or concerted activity. In a September 23, 2026 decision, the Board held that it must apply the standard established in General Motors LLC and remand the case for further proceedings before an administrative law judge.
The dispute arose from the discipline and discharge of union representative Joseph Colone. In earlier decisions, the Board found that the employer violated the National Labor Relations Act by threatening, disciplining, and discharging Colone for engaging in protected union activity. Those decisions relied on the Board’s traditional, setting-specific tests for determining whether employee misconduct caused an employee to lose the Act’s protection.
The case took a procedural turn after the Board issued General Motors LLC in 2020. That decision replaced several context-specific standards with the Wright Line burden-shifting framework. Under Wright Line, the General Counsel must show that protected activity was a motivating factor in the employer’s decision, after which the employer may avoid liability by proving it would have taken the same action regardless of the protected activity.
Although the Board later attempted to overrule General Motors in an earlier Lion Elastomers decision, the Fifth Circuit vacated that ruling, finding that the Board exceeded the scope of the court’s remand and violated the employer’s due process rights. The court directed the Board to apply General Motors to the case.
In its most recent decision, the Board’s majority concluded that General Motors remains controlling precedent and remanded the case for application of that standard. A dissenting member agreed that General Motors governs this particular case but argued that the majority went too far in suggesting that the Fifth Circuit’s decision restored General Motors as Board-wide precedent.
Employer Takeaway: For now, employers should expect the General Motors/Wright Line framework to play a significant role in cases involving employee misconduct during protected activity. The decision underscores the importance of documenting legitimate, nondiscriminatory reasons for discipline and consistently enforcing workplace rules. When an employer can demonstrate that it would have imposed the same discipline regardless of protected activity, it is in a stronger position to defend against an unfair labor practice charge.
If you have questions about employee misconduct, Bricker Graydon Wyatt is here to assist.
